Acrimony and faction dominated the 2002 regular Legislative session. For several years, Senate President McKay has talked about the need to implement tax reform. Coming off the budget shortfalls caused by the economic downturn aggravated by the September 11th terrorist attacks, Senator McKay decided this was the year to take action. Early on, the Senate passed CS/SJR 938 that would have eliminated many state tax exemptions and reduced the overall sales tax rate to 4%. The Senate withheld transmitting this resolution to the House until a compromise could be worked out. The House answered by filing its own companion resolution, taking it up as a committee of the whole, and voting against the idea 99-0 (many Democrats vacated the Chamber during this vote).

Senator McKay responded with determination, and, as the session progressed, it became clear that many things were being held hostage in the Senate to McKay’s tax reform desires. The hostages included the education code, the state budget and, in particular, a Congressional Reapportionment plan which would give Speaker Feeney access to one of the two new Congressional seats being drawn. As late as Wednesday of the final week of the legislative session, many were convinced that this contest between House and Senate leadership would lead to a legislative standoff. Nevertheless, during the waning moments of the Session, CS/CS/HJR 833 passed both houses of the Legislature. This proposed Constitutional Amendment created “Tax Reform Lite.” The proposal calls for the creation of a Joint Legislative Committee consisting of six Senators and six House members who are to conduct a review of all exemptions and exclusions from the tax on sales or use over a three-year period. Any decision of the Committee to de-authorize an exemption or exclusion that is approved by seven members automatically repeals the exemption unless the Legislature expressly rescinds the repeal (CS/CS/HJR 833 is scheduled for a vote of the citizens on the November 2002 ballot).

Environmental issues were not particularly high profile this session except for the bills dealing with growth management, Everglades restoration funding, citizen suit standing, and failed attempts to implement performance based permitting and amend Florida Forever to allow funding of reclaimed wastewater (reuse) transmission lines.

The Legislature must return in a series of special sessions to address the state budget, school education code revision, and creation of the new Chief Financial Officer Cabinet office mandated by the Constitutional amendment approved by the voters. The Legislature held one special session from April 2, through April 5, 2002 to revise the education code, but adjourned without passing anything due to differences between the House and Senate. There has been some progress the past several days preceding this writing on the above issues. The next special session began April 29 and will likely run until May 10, 2002.

The following is a summary of environmental legislation that passed. The growth management legislation is covered separately in this edition of the Reporter.


Everglades & Administrative Standing (HB 813)
Effective Date: 07/01/2002, with some exceptions

Current status: Not yet transmitted to the Governor.

This bill provides for the issuance of Everglades restoration bonds to finance or refinance the cost of acquisition and improvement of land, water areas, and related property interests and resources for the purpose of implementing the Comprehensive Everglades Restoration Project not to exceed $100 million, unless DEP requests additional amounts to achieve cost savings or accelerate the purchase of land. The state has committed to spending $100 million a year for 10 years, sharing the cost of the $8 billion Everglades project with the Federal Government. The bill, which passed the Senate unanimously and in the House 87-30 in the final hours of the session, gives lawmakers an option to fund the state’s share of the restoration.

The majority of what had formerly been HB 819 was tacked on to this bill during the last week of session. This portion of the bill eliminates review by the Florida Land and Water Adjudicatory Commission (FLWAC) of orders of the Water Management Districts (WMDs), and orders under part IV of Chapter 373, F.S. (management and storage of surface waters) issued by the DEP or delegated local governments, if the order resulted from an evidentiary hearing under Sections 120.569 and 120.57, F.S. It would also eliminate FLWAC review of WMD rules resulting from an evidentiary hearing under Section120.56, F.S (rule challenges). Additionally, it would give FLWAC the authority to refer any matter before it to DOAH, or remand it to the agency, for “supplementary” findings of fact. There is a “savings” clause that preserves a citizen’s right to initiate an administrative proceeding under Section 120.569 and 120.57, F.S., if a citizen’s substantial interests will be determined or affected by the proposed agency action. The bill also establishes a new test for association standing. Standing to initiate a Section 120.569 and 120.57, F.S. hearing would exist if the petitioner is a non-profit Florida corporation; if it has 25 members within the county where the activity is proposed; if the corporation was formed for the purpose of the protection of the environment, fish and wildlife resources, and protection of air and water quality; and if it was formed at least one year prior to the date the application for the permit or license was filed. Finally, the bill creates a new test for “citizen” standing for cases involving federally delegated or approved programs. In such cases, a citizen is permitted to initiate an administrative proceeding under Section 403.412, F.S., if the citizen would have standing under the Article III, U.S. Constitution, “case or controversy” criteria. The attorneys’ fees provisions from HB 819 did not make their way into HB 813.

Some environmental organizations opposed this last minute language added to the bill on the grounds that it arguably reduces citizen standing, but other environmental groups approved of it, believing that it would not impact standing due in large part to the savings clause above. It amends Sections 201.15, 215.619, 259.105, F.S. various provisions of Ch. 373, and Section 403.412, F.S.
 

Floating Vessel Platforms and Other Miscellaneous Environmental Provisions (CS/HB 1285)
Effective Date: Upon Becoming a Law

Current Status: Not yet submitted to the Governor.

CS/HB 1285 started out as a bill providing exemptions and general permits for certain floating vessel platforms and quickly became a magnet for miscellaneous exemptions and extensions of deadlines found in Chapters 373 and 403, F.S. The underlying bill was the culmination of a two-year effort to avoid the imposition of permitting on floating vessel platforms used to keep boats and jet skis out of the water while stored or moored at a dock. Additional provisions of interest to the citrus processing and mining industries were added, as were changes to the uniform wetland mitigation assessment requirements and an exemption for road paving work in the Northwest Florida Water Management District. All of the provisions are beneficial to regulated interests and were satisfactorily negotiated with the Department of Environmental Protection (DEP), water management districts, and local governments.

The bill provides that an Environmental Resource Permit (ERP) and sovereign submerged land authorization is not required to install and maintain a floating vessel platform within a slip of a permitted dock. Additionally, if the floating vessel platform is attached to a dock that does not require a permit or does not have a permitted slip, then the floating vessel platform is exempt from the need to obtain an ERP or sovereign submerged land authorization if it does not exceed 500 square feet, or 200 square feet in an Outstanding Florida Water. Local governments cannot impose any stricter requirements on floating vessel platforms that are exempt under the bill.
In addition to the exemption, the DEP is directed to develop a general permit by January 1, 2003, for floating vessel platforms that do not qualify for the exemption. Note, this same exemption and general permitting language is also found in CS/SB 508.

CS/HB 1285 also exempts improvements to existing roads and bridges found within the Northwest Florida Water Management District if the road or bridge was maintained by an applicable local government on or before January 1, 2002. In effect, this allows for the paving of dirt roads and the improvement of existing vehicular bridges without transactional costs and delays associated with obtaining wetland resource permits. In order to ascertain how this exemption is working in the Northwest Florida Water Management District and to investigate the expansion of it statewide, the DEP must prepare a report on the effects of the exemption by March 1, 2004.

Because there have been delays in the development and adoption of the uniform wetland mitigation assessment method, which was originally scheduled to become effective January 31, 2002, CS/HB 1285 extends the statutory due date for that rule until July 31, 2002. The DEP has currently developed a draft rule and has conducted various field verifications of the draft rule throughout February and March of 2002. The bill also adds language to the statutory provisions governing the uniform wetland mitigation assessment method clarifying that this method, once adopted, will be binding on all local governments and that the method will only govern the amount of mitigation required for wetland and surface water impacts, not the appropriateness of that mitigation.

As a result of questions regarding the underlying statutory authority for mining exemptions originating from rules of the Southwest Florida Water Management District, the bill provides additional clarifying authority in Section 373.406(11), F.S., “bootstrapping” previous exemption letters issued by the Southwest Florida Water Management District for various mining activities.

Finally CS/HB 1285 addresses the citrus processing air discharge pilot project enacted two years ago, which has still not received EPA approval. As a result of the time being taken by EPA to approve the pilot project, CS/HB 1285 grants an additional year to EPA to take action before the terms and conditions of the pilot project became null and void.

Exemptions for the Removal of Muck from Freshwater Rivers or Lakes and For Installation Floating Vessel Platforms (CS/SB 508)
Effective Date: 07/01/02

Current status: CS/SB 508 was transmitted to the Governor on April 11, 2002.

CS/SB 508 creates an exemption from the permitting requirements of Chapters 253, 369, 373, and 403, F.S., for individual residential property owners to remove organic detrital material (muck) from freshwater rivers or lakes that have a natural sand or rocky substrate and that are not aquatic preserves. This muck removal exemption is not applicable in wetlands that are supported by a natural soil as shown in applicable U.S. Department of Agriculture county soil surveys. The muck removal exemption does not allow for filling or peat mining, or for the removal of native wetland trees.

Muck removed under this exemption must be deposited in an upland site, and the removal activity must be conducted with turbidity controls and other measures needed to prevent water quality violations. At least 25% of pre-existing vegetated areas must be replanted with a variety of native aquatic plants, except for an access corridor no greater in width than 50% of the property owner’s frontage or 50 feet, whichever is less. Muck removal under this exemption cannot extend further than 100 feet waterward of the ordinary high water line and cannot infringe upon riparian rights. Persons seeking this muck exemption must notify the DEP in writing at least 30 days before commencing work. By November 1, 2004, the Department of Environmental Protection and the Fish and Wildlife Conservation Commission must jointly prepare a report to the Governor and the Legislature evaluating the effects of the muck removal exemption created by the bill on overall water quality and aquatic and fishery habitat of waterbodies where the bill’s muck removal exemption has been used.

The bill also creates an exemption for the installation and maintenance of floating vessel platforms identical to the language contained in CS/SB 1285 explained above.


Fish and Wildlife Conservation Commission - Saltwater Fisheries and Manatee Protection (CS/HB 1243)
Effective Date: 07/01/02

Current Status: Not yet submitted to Governor.

CS/HB 1243 makes a number of changes relating to the conservation of marine resources. The bill deletes the requirement that proceeds from major violations of the statutes and rules relating to the conservation of marine resources be deposited into the Marine Resources Conservation Trust Fund or into the Federal Law Enforcement Trust Fund. Penalties for the use of illegal nets are revised, including a provision that any person whose saltwater license privileges were revoked for the use of illegal nets may not be aboard any vessel on which a commercial quantity of saltwater products is possessed through licensed activity. The bill provides that the purchase by a commercial wholesale dealer, retail dealer, or restaurant facility of any saltwater product taken in violation of the constitutional net ban or an implementing rule or statute is a major violation subject to the proscribed penalties.

The bill expands the list of who may certify residents as totally disabled for licensing purposes to include physicians. The bill also limits restricted species endorsements for disabled licenses to individual saltwater products licenses.

The provisions related to the confiscation, seizure, and forfeiture of property and products for illegal saltwater products or illegal fishing gear are substantially reworded. The bill provides for seizure and forfeiture, requires notification relating to the property to be seized, establishes a burden of proof and permissive seizure depending on whether there is a prior conviction, considers existing liens on automobiles, allows for a court order of forfeiture, permits the destruction or disposition of property, sets forth a procedure for the confiscation and sale of perishable saltwater products, and provides for municipal or county law enforcement assistance.

CS/HB 1243 provides that the state attorney shall represent the state in any forfeiture proceeding provided as a penalty for violation of the statutes and rules relating to the conservation of marine resources. The Department of Legal Affairs is designated to represent the state in all appeals from judgments of forfeiture to the Supreme Court. Provisions are revised related to the seizure of illegal hunting devices by providing for seizure and forfeiture, establishing a burden of proof and permissive seizure depending on whether there is a prior conviction, requiring notice related to the property to be seized, and requiring all amounts received from the sale or other disposition of property to be paid into the State Game Trust Fund. Language is added which clarifies that the disposition of illegal fishing devices is necessary for the more efficient and proper enforcement of the laws of Florida and is a lawful exercise of the police power of the state.

CS/HB 1242 makes it a third degree felony to molest or willfully remove the contents of any authorized and lawfully permitted freshwater fishing gear belonging to another without the express written consent of the owner. The bill also limits the transfer of endorsements once a citation has been issued and provides for the loss of freshwater and saltwater fishing privileges as well as an administrative fine.

In addition to the saltwater fisheries provisions, the CS/HB 1242 makes several important changes to the Manatee Sanctuary Act. The bill provides that a county commission is now required to appoint a local rule review committee whenever the Fish and Wildlife Conservation Commission (FWCC) proposes manatee protection rules that impact the county. Local rule review committees are allowed to examine the data used to develop the rule and to submit a written report to the members and staff of the FWCC regarding the rule. The bill provides that for manatee regulations where manatee sightings are frequent and the best available scientific information, as well as other available, relevant, and reliable information, including manatee surveys, observations, available food sources, and water depths, supports the conclusion that manatees inhabit these areas. The authority and current process for local governments to establish manatee protection zones is maintained, but the bill now requires the zones to be established using the same standard of scientific information used by the state.

The 13 "key" counties identified by the Governor and Cabinet in 1989 are required to adopt a manatee protection plan, and any county designated as having a "substantial risk for manatee mortality" must complete a manatee protection plan by July 1, 2006. The FWCC is authorized to adopt rules for identifying substantial risk counties and establishing criteria for approval of manatee protection plans for these counties. The bill sets forth the elements for a manatee protection plan and provides that the boating facility siting element of future plans must be incorporated into the comprehensive plan of the county. The FWCC is directed to develop measurable biological goals that define manatee recovery that will be used, in addition to other criteria, to develop management or work plans and to evaluate existing and proposed protection rules. In addition, the FWCC is required to conduct studies of public compliance with manatee protection rules and to use the results of the studies to develop and implement strategic law enforcement initiatives and boater education plans.


Fish and Wildlife Conservation Commission (CS/HB 1085)
Effective Date: 07/01/02, except where otherwise provided

Status: Signed by the Governor on April 16, 2002; Chapter 02-46, L.O.F.

CS/HB 1085 represents the annual legislative package of the Florida Fish and Wildlife Conservation Commission (FWCC). Among many other items, the bill substantially revises the definitions relating to wildlife in Chapter 372, F.S., and the statutes related to recreational licenses, permits, and authorization numbers. The bill allows a person who is cited for not having a boating safety identification card to show his or her card, which was valid at the time the citation was entered, to the clerk of the court who may dismiss the case and assess a $5 dismissal fee. The FWCC is also authorized to accept title, on behalf of the State of Florida, to vessels for the use in the artificial reef program as offshore artificial reefs.

The bill reorders and revises the definitions in Chapter 372, F.S., related to saltwater and freshwater fish, shellfish, crustacea, sponges, wild birds, and wild animals, including definitions for “fish and game,” “fresh water,” and “take.” Statutory language is added stating that the Legislature recognizes the value of hunting, fishing, and the taking of game as being a valued part of the cultural heritage of Florida and that these activities play an important part in the economy of the state and in the conservation, preservation, and management of the natural resources of the state. The bill further provides that the citizens of Florida have a right to hunt, fish, and take game, subject to the regulations and restrictions prescribed by general law and the Florida Constitution.

The distribution of proceeds for the Lifetime Fish and Wildlife Trust Fund, the Dedicated License Trust Fund, and the Marine Resources Conservation Trust Fund is revised, and the percentage of certain fees that can be spent on administration is limited. The FWCC may use competitive bid procedures to create a process and vendor fee for credit card purchases of licenses and permits over the telephone and electronically.

A number of statutes relating to recreational licenses, permits, and authorization numbers are revised, including: a license, permit, or authorization number to hunt, fish, or take fur-bearing animals in the state is required; license, permit, and authorization numbers are not transferable; requirements are established for lifetime and 5-year licenses; personal possession of the license and a positive form of identification when using a license is mandated; fees are established for hunting and fishing activities for residents and non-residents; a pier license fee of $500 for any pier fixed to land for the purpose of taking or attempting to take saltwater fish is required; vessel licenses are required for persons who operate vessels wherein a fee is paid, either directly or indirectly, for the purpose of taking or attempting to take saltwater fish; a license is required for a recreational vehicle not-for-hire and for which no fee is paid, either directly or indirectly, by guests for the purpose of taking or attempting to take saltwater fish noncommercially; permit and fee requirements are set forth for waterfowl, turkeys, snook, crawfish, muzzle-loading guns, archery, bass, limited-entry hunting or fishing, management area permits, and recreational user permits; a resident 5-year hunting license, fishing license, or recreational activity permit is created, as are a resident lifetime freshwater or saltwater fishing license, a resident lifetime hunting license, and a resident lifetime sportsman’s license; the distribution of all lifetime license fees is established; the FWCC is permitted to reduce the fees for licenses and permits for residents of those states with which the FWCC has entered into a reciprocal agreement; the FWCC may designate by rule no more than two days in each year as free freshwater fishing and two days in each year as saltwater fishing days.

The bill changes the statutes related to the appointment of subagents by tax collectors for the sale of licenses and permits and gives the FWCC the authority over subagents beginning in July 2003. A person who is cited for a violation of the provisions relating to recreational licenses, permits, and authorization numbers may not be convicted if the person produces the required license or permit in court or to the clerk of the court prior to the time of court or hearing appearance.

The bill adds language further defining the waters of Rainbow Springs, the Rainbow River, Silver Springs, and Silver Springs Run in Marion County where it is unlawful to take any fish unless permitted by the FWCC. Subsection (4) of Section 372.05, F.S., relating to the requirement that the Executive Director submit to the FWCC at each of its meetings a report of all the actions and doings as official representative of the FWCC, is repealed. The bill also repeals Section 372.06, F.S., relating to the meetings of the FWCC and the requirement that the FWCC hold at least four meetings at the state capital no less frequently than once every three months and the notice required for such meetings.


Environmental Cost Recovery (HB 1601)
Effective Date: Upon Becoming a Law

Status: Not yet transmitted to the Governor.

In an attempt to encourage Gulf Power Company and the Department of Environmental Protection (DEP) to sign an agreement with respect to air pollution measures that the company could implement and hopefully avoid the possibility of its region becoming a non-attainment zone for ozone, HB 1601 expands the Florida Public Service Commission’s authority for cost recovery. Historically, implementation of precautionary pollution control measures would not allow a utility to recover those costs through its rate making. In addition to the environmental cost recovery revision that is acknowledged to be limited in its practical utility to Gulf Power, the legislation provides for a statewide study dealing with renewable energy.

HB 1601 provides that an electric utility which has entered into an agreement with either the DEP or the EPA on or before October 1, 2002, in an attempt to ensure compliance with ozone ambient air quality standards is authorized to recover prudently incurred costs and expenses in the implementation of that agreement. In practical terms, the legislation will have a direct bearing only on Gulf Power. The bill also directs the Florida Public Service Commission, after consultation with the DEP, to perform a study evaluating the costs, feasibility, and potential implementation schedule for renewable energy. The results of the study are to be submitted to the Legislature by February 1, 2003, and for purposes of conducting this study, the terms “biomass,” “green energy,” and “renewable energy” are defined.


Pollution Reduction and Lake Okeechobee Protection (CS/SB 678)
Effective Date: Upon Becoming a Law

Status: Transmitted to the Governor on April 11, 2002.

This bill amends the total maximum daily load (TMDL) law to provide that interim measures, best management practices, or other measures can be developed and voluntarily implemented for any water body or segment for which a TMDL or allocation has not been established. By July 1, 2005, phosphorus concentrations originating from entities that dispose of domestic wastewater residuals within the Lake Okeechobee watershed shall not exceed the limits established in the South Florida Water Management District’s Works of the District program. The Department of Health is directed to require all entities disposing of septage within the Lake Okeechobee watershed to develop and submit, by July 1, 2003, an agricultural use plan that limits applications based upon phosphorus loading. By July 1, 2005, phosphorus concentrations originating from these application sites cannot exceed the limits established in the South Florida Water Management District’s Works of the District program.

The bill also provides that projects that make use of private lands or lands held in trust for Indian tribes to reduce nutrient loadings or concentrations with the Lake Okeechobee watershed are eligible for grants available by the coordinating agencies charged with implementing the Lake Okeechobee Protection Program if they do one of the following: restore the natural hydrology of the basin, restore wildlife habitat or impacted wetlands, reduce peak flows after storm events, increase aquifer recharge, or protect range and timberland from conversion to development. Funding priority will be given to projects that make the best use of these methods and that involve public-private partnerships or that obtain federal match money.

The bill also changes the amount of time the EPA has to approve DEP’s revised air emissions state implementation plan changes for citrus processing facilities under the pilot program passed two years ago from two to three years. Finally, the bill states that a professional engineer’s preparation and signing of a permit application does not make the engineer an agent of the owner or tenant for purposes of DEP enforcement actions under Section 403.121, F.S.


Minimum Flows and Levels for Springs (CS/SB 574)
Effective Date: Upon Becoming a Law

Status: Signed by the Governor on April 11, 2002; Chapter 02-15, L.O.F.

The Department of Environmental Protection (DEP) has given considerable attention to the protection of Florida’s springs. They have looked at these resources not only from a public water supply standpoint, but also from a saltwater intrusion, manatee haven, and water quality perspective. There has also been considerable attention given to springs protection from central and southwest Florida due to legislator concerns regarding the use and diversion of springs for bottled water. In the appropriations process, DEP has requested specific dollars for spring protection, and this legislation was developed to tighten the consumptive use criteria applicable to withdrawals in and around first-magnitude springs.

CS/SB 574 provides that each water management district is directed, by January 1, 2003, to include in its minimum flow and level (MFL) priority list the schedule they will use to develop MFLs for first-magnitude springs and some second-magnitude springs if located within a state or federally owned piece of property. The schedule for development of the MFL is to be prioritized based on the potential threat to the springs’ flow originating from consumptive uses. The Suwannee River Water Management District and second-magnitude springs not located on federal or state lands need not be included in the MFL priority list and schedule provided the water management district submits a report to the DEP stating that adverse impacts are not now occurring nor are they reasonably expected as a result of consumptive uses during the next 20 years.


Citrus Canker Treatment (CS/SB 1926)
Effective Date: Upon Becoming a Law

Current Status: Signed by the Governor on March 18, 2002; Chapter 02-11, L.O.F.

This bill commands the Department of Agriculture and Consumer Services (DACS) to remove and destroy all citrus trees infected with citrus canker and all trees exposed to infection. DACS must, by immediate final order, give notice to property owners of the removal and destruction of all citrus trees infected with citrus canker and all trees exposed to infection. Citrus trees exposed to citrus canker infection are defined as citrus trees located within 1,900 feet of an infected tree.
Within 10 days after receiving the notice, the property owner must seek a stay of the order from the applicable district court of appeal or the citrus trees will be removed and destroyed.

The sheriff or chief law enforcement officer of each county must assist DACS in the removal and destruction of trees. DACS may seek a search warrant from a judge to enter property if it suspects a violation of the citrus canker quarantine or to inspect, seize, or destroy infected trees or trees exposed to infection.


Coastal Zone Management Act Update, and Transfer (CS/HB 1591)
Effective Date: 07/01/02

Current Status: Not yet transmitted to the Governor.

CS/HB 1591 updates Florida’s Coastal Zone Management Act and transfers the implementation of that Act from the Department of Community Affairs (DCA) to the Department of Environmental Protection (DEP). The DEP is granted authority to adopt rules prescribing the procedures and information needs for review of consistency determinations. The bill also updates the Florida Coastal Zone Management Act is updated by correcting citations to state and federal statutes, deleting obsolete language relating to the development and approval of Florida’s Coastal Zone Management Program, and clarifying legislative intent and procedures regarding review of coastal consistency determinations. CS/HB 1591 also directs DEP to coordinate an effort to develop and implement a uniform system of warning and safety flags and notification signs on public beaches along the Florida coast.


Coastal Management Program Transfer (HB 1963)
Effective Date: 07/01/02

Current Status: Not yet transmitted to the Governor.

HB 1963 simply transfers Florida’s Coastal Management Program from the Department of Community Affairs to the Department of Environmental Protection, including all powers, duties and functions, rules, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds of the Florida Coastal Management Program.


Reenactment of Everglades Agricultural Area Environmental Protection District (HB 1079)
Effective Date: Upon Becoming a Law

Current Status: Not yet transmitted to the Governor.

HB 1079 primarily affects agricultural interests located in Palm Beach, Hendry, and Glades Counties by codifying the Everglades Agricultural Area Environmental Protection District into a single comprehensive special act which provides for a charter and all of the duties and obligations of the District, thus replacing and repealing all previous authority. The bill provides the purposes, boundaries, and powers granted to the Environmental Protection District are restated, with the specific legal description of the properties located within Palm Beach, Hendry, and Glades Counties being provided. The District Board’s composition, meeting requirements, and other duties and responsibilities are expressly outlined in the legislation. The bill also outlines the District’s financial obligations, bonding authority, and special assessment powers of up to $10 per acre.


Solid Waste Collection (SB 266)
Effective Date: 07/01/2002.

Current Status: Signed by the Governor on 4/16/02; Chapter 02-23, L.O.F.

This bill requires that a local government’s plans for incorporation of unincorporated areas must honor existing solid waste contracts in place in the affected area. However, the plan for incorporation may provide for existing contracts for solid waste collection services to be honored only for five years or the remainder of the contract term, which ever is less. The bill would also exempt solid waste or recovered materials collection vehicles from the prohibition against leaving unattended vehicles idling. The bill passed unanimously by both chambers. It amends Sections 165.061, 316.1975, F.S.


Solid Waste Management (CS/HB 851)
Effective Date: Upon becoming law.

Current Status: Not yet transmitted to the Governor.

This bill addresses both solid waste management and water project funding. The bill transfers two tenths of one percent of state sales tax revenues to the Ecosystem Management and Restoration Trust Fund to fund water quality improvement and water restoration projects. This amount is estimated at $33.2 million for FY 2002-03. This funding currently goes to the Solid Waste Management Trust Fund, however, during the last few years these funds have been appropriated for water projects; the bill codifies this procedure. The proposed law creates a grant program for distribution of these proceeds to fund water projects. It specifies the entities eligible for funding and threshold funding considerations and requires the Department of Environmental Protection (DEP) to submit a list of projects to the Legislature and Governor as part of its annual Legislative Budget Request.

The bill also directs DEP to develop a competitive and innovative solid waste management grant program, for counties, municipalities, special districts, and nonprofit organizations that have legal responsibility for the provision of solid waste management services. The bill includes special incentives for smaller counties with a population of less than 100,000. The proposed law directs DEP to evaluate and prioritize the annual grant proposals and present an annual prioritized list of projects to be funded to the Governor and the Legislature as part of its annual budget request. The committee substitute was passed unanimously by both the House and Senate on March 22, 2002. It amends Section 212.20, and multiple Sections of 403.703 through 403.719, F.S.

 

Some bills of interest that did not pass are as follows:

Brownfield Property Ownership Trust Fund (SB 858)
This bill would have re-created the Brownfield Property Ownership Clearance Assistance Revolving Loan Trust Fund within the Executive Office of Governor without modification. It carries forward current balances and continues current sources and uses thereof. Although this bill passed unanimously out of committee and passed unanimously on the floor of the Senate on January 24, 2002 and was immediately certified to the House, it later died in committee in the House.

Performance-Based Permitting Act (SB 564)
This bill would have established a performance-based permitting program requiring DEP to consider the compliance history for permit applicants in a structured manner. The bill establishes a clear, consistent, predictable and equitable process for evaluating the compliance history of permit applicants. The bill also set up incentives for permit applicants with a favorable compliance history. This bill died in committee.

Treated Wood (HB 113)
This bill would prohibit the use of wood products treated with chromated copper arsenate (CCA) in publicly funded playground equipment and prohibit state agencies from purchasing wood treated with CCA. It provides for enforcement on state lands by DEP and requires the Department of Education (DOE) to provide notice and to develop guidelines for school districts regarding CCA. This bill includes a $500,000 appropriation. It was reported unfavorably from the House Agriculture & Consumer Affairs Committee.

Drycleaning Solvent Cleanup Program (CS/HB1541)
This bill would have exempted adjacent real property owners from non-governmental claims for property damage arising from contamination by drycleaning solvents. Although this bill was attempting to increase marketability and prohibit double recovery for program participants, the limitation on liability proved too controversial. It died on the floor during the last week of session.

Water Supplies (CS/HB 1299)
This bill contained a variety of provisions related to developing alternative water supplies and encouraging water conservation. It would have revised the criteria for alternative water supply co-operative funding, provided that alternative water supply projects identified in the water management districts’ regional water supply plans would be eligible for 20 year consumptive use permits and priority funding; and encourage the issuance of longer duration consumptive use permits for applicants who implement above average water conservation measures. The bill would also provide a variance from phosphate mining reclamation requirements to accommodate reclamation that supports water supply or water resource development. Finally, the bill would have called for a study of the reuse of reclaimed domestic wastewater by conveying that wastewater through the canal system of lower Southeast Florida. The bill died in returning messages from the Senate.


Angela Dempsey is a Senior Assistant General Counsel at the Florida Department of Environmental Protection. Ms. Dempsey specializes in civil litigation enforcing the Resources Conservation and Recovery Act (RCRA) and related state statutes concerning hazardous waste. She received her J.D., with honors, from the University of Florida College of Law in 1993, and her B.S. degree from San Diego State University in 1990. Ms. Dempsey was previously an Assistant State Attorney in Orlando.

Eric T. Olsen is a shareholder with Hopping, Green & Sams, P.A., concentrating his practice in areas involving wetlands, water use, water supply, Environmental Resource Permitting and legislation. He was formerly a Senior Assistant General Counsel with the St. Johns River Water Management District. He received his J.D., with honors, from the University of Florida in 1989, and his B.A. from Clemson University in 1986.